CONSOLIDATED TRUST DEED FOR SUNSUPER PTY LTD AS TRUSTEE FOR SUNSUPER SUPERANNUATION FUND

Transcription

1 CONSOLIDATED TRUST DEED FOR SUNSUPER PTY LTD AS TRUSTEE FOR SUNSUPER SUPERANNUATION FUND SUNSUPER PTY LTD ABN SUNSUPER SUPERANNUATION FUND CONSOLIDATED TRUST DEED Consolidated to 20 April 2018 CORRS CHAMBERS WESTGARTH Lawyers Level 42, One One One 111 Eagle Street BRISBANE QLD 4000 AUSTRALIA Tel: (07) Fax: (07) Ref: CM

2 TRUST DEED DATED 1 OCTOBER 1987 CONSOLIDATED TRUST DEED COMPRISING: DEED OF VARIATION DATED 7 JULY 1999 (REPLACEMENT TRUST DEED) AS AMENDED BY: Deed of variation dated 8 August 2001 Deed of variation dated 27 June 2002 Deed of variation dated 20 April 2005 Deed of variation dated 8 November 2005 Deed of variation dated 15 June 2007 Deed of variation dated 16 July 2008 Deed of variation dated 25 February 2013 Deed of variation dated 27 September] 2013 (effective 25 February 2013) Deed of variation dated 23 October 2013 Deed of variation dated 24 November 2014 (effective 22 October 2014) Deed of variation dated 16 December 2015 Deed of variation dated 22 June 2016 Deed of variation dated 17 February 2017 (effective 22 June 2016) Deed of variation dated 20 April 2018 CORRS CHAMBERS WESTGARTH Lawyers Level 42, One One One 111 Eagle Street BRISBANE QLD 4000 AUSTRALIA Tel: (07) Fax: (07) DX: 135 Brisbane Ref: CM

3 CONTENTS 1 DEFINITIONS AND INTERPRETATIONS Definitions Definitions from SIS Statutes Plurals and Genders Clauses, Schedules and Rules Headings and Sub-Headings Bodies and Associations CONSTITUTION OF TRUST Trust Commencement Name of Fund Fund Interest in the Fund Participating Employers and Members bound by Deed Purpose Compliance PARTICIPATING EMPLOYERS Application for Participation as a Participating Employer Trustee may reject application for Participation Participation without application Date of Admission Information to be given to Employers or prospective Employers Terms of Participation Termination of Participation Substituted Employer Consequences of termination Rights of Employer maintained MEMBERS Eligibility Application for membership Admission with no application Applicant to provide information Admission to membership Date of admission Provisional Members Information to be given to Members or prospective Members Subsequent failure to provide Information Termination of Membership/Provisional Membership Cooling Off Period ACCOUNTS OF THE FUND Establishment of Reserve Account Crediting of Reserve Account Debiting of Reserve Account Application of Reserve Account Credit Establishment of Retirement Credit... 15

4 5.6 Allocations to Retirement Credit Other Accounts Change in value of the Fund Unallocated Accounts for Defined Benefits Reserves for parts of the Fund MANAGEMENT OF TRUST Powers of Trustee Delegation of Trustee powers Appointment of Administrator, Custodians and Advisers Remuneration of Delegates and Advisers Exercise of Discretion Trustee not required to give security Remuneration of Trustee Registration in name of nominee or custodian trustee Director may be a Member Discretions Absolute MySuper Classes Employer s MySuper Classes MySuper Class and other classes TRUSTEE Constitutional Corporation Removal of Trustee Trustee may retire Appointment of new Trustee Vesting of Fund in New Trustee Defects in Appointment Covenants by new trustee [Deleted] INVESTMENT AND BORROWING Investment strategy Trustee to give effect to investment strategy Implementing the investment strategy Investment directions from Member A MySuper Investment Strategy B Investment strategy for Reserve Account and reserves Authorised Investments Appointment of Investment Manager Underwriting of Authorised Investments Borrowing Dealings with Members Loans to Participating Employers EXPENSES AND FEES Expenses Payment of Expenses Charges CONTRIBUTIONS Employer Contributions... 34

5 (iii) 10.2 Member Contributions Contributions by other persons Payment of Contributions Cessation of contributions BENEFITS Payment of Benefits Deduction of Tax from Benefits Reduction of Benefit payable Benefits payable to Members Amount of benefit payable A Insured Benefits for MySuper Class B Total and Permanent Disablement benefits for TPD Class Severe Financial Hardship and Compassionate Grounds Deferral of benefit payments Death benefits Partial payments Benefit payment standards Form of benefit payments Payment of lump sum benefits Payment of pension benefits Payment to a Superannuation Entity Release to Trustee Evidence of entitlement to benefits Incapacity Transfer to Eligible Rollover Fund Payment Splits TRANSFER FROM ANOTHER FUND Arrangements for transfer to the Fund Member s consent Value of transfer TRANSFER TO ANOTHER FUND Member or Employer may request transfer Member s consent to transfer out A Transfers without member consent B Partial transfers Transfer of assets Receipt sufficient discharge ACCOUNTS AND AUDIT Records to be kept Accounting Records Accounts Auditor Auditor s access Information for Members REGISTERS Participating Employers Register Members Register... 47

6 (iv) 16 TERMINATION OF THE FUND Circumstances of Termination Termination Procedure Distribution Receipt for Distribution TRUSTEE S INDEMNITY Trustee s entitlement to indemnity No indemnity for breach A Restriction on indemnity for operational risks Indemnity for Directors Trustee not liable for actions Trustee is obliged to perform Discharge on receipt by Trustee LIMITATION ON LIABILITY OF PARTICIPATING EMPLOYERS AND MEMBERS No liability to make payments No obligation to indemnify Trustee AMENDMENT OF DEED Permitted Amendments Amendments Notification of Amendments STATUTORY SUPERANNUATION SCHEME GENERAL PROVISIONS Notices Prohibition on reversion of assets Governing Law Workers Compensation not affected Severance Disputes... 52

7 1 DEFINITIONS AND INTERPRETATIONS 1.1 Definitions In this Deed unless the context otherwise requires the following expressions have the meanings given to them in this clause 1. Accrued Benefit means in relation to a Defined Benefit Member at any time, the value of the benefit that has accrued to that Member up to that date as determined by the Trustee on the advice of an actuary in accordance with the Defined Benefit Agreement applicable to that Member. A Defined Benefit Member s Accrued Benefit comprises: the Defined Benefit applicable to the Member, in the circumstances in which the benefit has become payable (whether on retirement, death, Total and Permanent Disablement or other termination of Service); and the Member s Retirement Credit (if any). Administrator means a person appointed to administer the Fund pursuant to clause 6.3. Auditor means a person appointed under clause 14.4 to perform the functions of auditor of the Fund. Authorised Investments means the investments more particularly described in clause 8.5 and any of them. Binding Nomination means a notice to the Trustee given by an applicant or Member directing the Trustee to pay all or part of the benefit payable on their death to a person or persons nominated in the notice, and the notice complies with the following: each person nominated is within a class of persons the Trustee has prescribed as eligible to be nominated in a Binding Nomination; the notice is in a form prescribed by the Trustee; the notice otherwise complies with form and content requirements prescribed by the Trustee; and the nomination was given or confirmed within the period before the Member s death prescribed by the Trustee. Charging Rules means all of the rules set out in SIS prescribing the manner in which fees and charges payable in respect of a Member who holds a MySuper Interest may or must be calculated and allocated to Members holding MySuper Interests. Commodities means any tangible personal property, currency, interest rate, financial index or indices (including any share index) or such other tangible or intangible thing determined by the Trustee for the purposes of this definition. Custodian means any person appointed under clause 6.3 to perform the functions of custodian of part or all of the Fund. Deed means this document as amended from time to time, and includes the Rules and any other schedules.

8 2 Defined Benefit means a benefit to which a Member is or may become entitled, the amount of which is determined other than by reference to the Member s Retirement Credit. Defined Benefit Agreement has the meaning given to that term in clause 5.9. Defined Benefit Member means a Member whose entitlement to benefits from the Fund includes a Defined Benefit. Dependant of a Member means any person who is or was at the relevant time: a Spouse of the Member; a Child of the Member; or dependent upon the Member for maintenance or support; or in an Interdependency Relationship with the Member, where the relevant time occurs on or after 1 July Derivative means any financial instrument or arrangement whose economic performance is dependent on any change in interest rate, currency value or exchange rate or the economic performance of another security or Commodity. Eligible Person means a person who is eligible under Superannuation Law to join, and remain a member of, a Regulated Superannuation Fund. Eligible Reversionary Beneficiary means, in relation to a Member s nomination of a Reversionary Beneficiary, a person who: is a Dependant of the Member (at the time of the nomination and at the time of the Member s death); where the person is the Member s Spouse at the time of nomination, is the Member s Spouse at the time of the Member s death; and is otherwise eligible under Superannuation Law to be a Reversionary Beneficiary of the pension (at the time of the nomination and at the time of the Member s death). Employee has the meaning given to that term in section 15A of SIS, and in relation to any Participating Employer means an employee of that Participating Employer. Employer has the meaning given to that term in section 15A of SIS, and in relation to a Member, or former Member, at any time, means an employer of that Member at that time. Expenses means the expenses listed in clause 9.1. Financial Year means each successive period of 12 Months commencing on 1 July and ending on 30 June, or any part of such period that may occur at the commencement or termination of the Fund. Fund means the superannuation trust fund constituted by the Deed.

9 3 Index Linked Securities means any investment whose economic performance is dependent on changes in any index. Insurance Investments means any investment offered by an insurance company or life office, whether the same involves a deposit, a loan, payment of premiums, acquisition of a right or interest in or arising out of insurance or life policies, or in a statutory fund or any similar investment. Insured Benefit means the proceeds payable under a Policy of Insurance covering a Member or group of Members. Interest Crediting Rate refers to allocation to Member Accounts of a net change in value of the assets of the Fund or an investment strategy under clause 5.8 (expressed in such manner as the Trustee determines, which may or may not refer to crediting rate or net earning rate). Investment Manager means a person appointed as an a investment manager pursuant to clause 8.6. Land includes: land of any tenure and any estate or interest whether vested or contingent in land; buildings or parts of buildings whether the division is horizontal vertical or made in any other way; a lot comprised in a building units plan or group titles plan; an easement, right, privilege, share, interest or benefit in, over, derived from or attached to Land. Land Swaps means any investment whose economic performance is dependent on changes in the performance or relative performance of any Land or any agreement, arrangement or understanding tied to the changes in the performance of any Land or relative performance of any Land. Large Participating Employer has the meaning given to that term in clause Lifecycle Exception means, in relation to a MySuper Investment Strategy, that gains and losses from different classes of asset may be streamed to different subclasses of Members who hold a MySuper Interest: on the basis, and only on the basis, of the age of those Members; on the basis of the age of those Members and other factors prescribed under SIS; or on the basis of the age of those Members and other factors prescribed in circumstances prescribed under SIS. Member means a person whom the Trustee has accepted as a Member and who has not ceased to be a Member and includes, unless the contrary intention appears, a Provisional Member.

10 4 Member Account means in relation to a Member, the Retirement Credit of that Member. Month means a calendar month. MySuper Class has the meaning given to that term in clause MySuper Interest of a Member means a beneficial interest of the Member in a MySuper Class. MySuper Investment Strategy has the meaning given to that term in clause Offer Document means any document issued by the Trustee offering membership of the Fund. Participating Employer means an Employer which the Trustee has accepted as a Participating Employer to the Fund and which has not ceased to be a Participating Employer. Participation Agreement has the meaning given to that term in clause 6.12(e). Permitted Fees means, in relation to a MySuper Class, fees and charges as provided in clause 9.3. Permitted Limitation means a limitation on the source or kind of contributions that is: a prescribed limitation for a MySuper Product under SIS; or imposed by or under the general law or another law of the Commonwealth. person includes partnerships, associations or corporations as the context may require. Policy of Insurance means any policy of insurance or assurance of any kind covering a Member, or a group of Members. Preserved Benefit means: the amount of any benefit or any part of a benefit; or in relation to a Member who has not become entitled to a benefit, the Retirement Credit or Accrued Benefit or any part of it, which comprises the amount of the Member s Preserved Benefit for the purposes of SIS, or as otherwise determined by the Trustee, and which has not become unrestricted nonpreserved benefits under SIS. Provisional Member means a person whom the Trustee has accepted as a Provisional Member, and who has not become a Member. Repos means agreements, arrangements or understandings with a person whereby any Investments are transferred to or Investments are acquired from that person on the basis that the transaction will be reversed on a predetermined rate and at an agreed price.

11 5 Reserve Account means an account kept pursuant to clause 5.1. Retire has the meaning assigned to that expression in SIS and Retires, Retired and Retirement have corresponding meanings. Retirement Credit means in relation to a Member at any time, the balance of the account established for the Member under clause 5.5. Reversionary Beneficiary means, in relation to a Member, a person who is an Eligible Reversionary Beneficiary of that Member at the relevant time, and: the Member: on commencement of the Member s pension benefit, in a form acceptable to the Trustee, nominated the person to receive the Member s pension benefit on the Member s death; and has not made another nomination permitted by the Trustee; the Member: at such time during the term of the pension as the Trustee permits, in a form acceptable to the Trustee, nominated the person to receive the Member s pension benefit on the Member s death; and has not made another nomination permitted by the Trustee; or where the Member s pension benefit is transferred to the Fund from another Superannuation Entity: immediately before transfer of the benefit the person was recognised by that Superannuation Entity as a reversionary beneficiary of the benefit; and the Trustee has determined to accept that nomination for the purposes of the Fund (either for that Member individually or for all or a group of Members transferring from that Superannuation Entity), and the Member has not made another nomination permitted by the Trustee. RITS means the Reserve Bank Information & Transfer System. Service means service as an Employee of an Employer and includes service as a fulltime or part-time salaried director of an Employer and such other categories of service as a Participating Employer and the Trustee may agree to from time to time in respect of a Member. The following periods shall, at the Trustee s discretion, be included in a Member s Service: any period during which the Member is employed by any other person directly or indirectly allied or associated with an Employer;

12 6 (e) any period of employment during which the Member is employed (whether in military employment or otherwise) in connection with or in contemplation of hostilities or compulsory national service; any period of absence from duty with an Employer which by operation of any statute is deemed to be employment with that Employer; any period of absence from duty with an Employer not exceeding six (6) Months (or such longer period as the Trustee upon the advice of the Employer may determine in any particular case) where such absence is due to illness or injury; and the whole or any part of a period of absence from duty with an Employer which that Employer determines with the agreement of the Trustee shall be regarded as service of the Member with the Employer. SIS means the Superannuation Industry (Supervision) Act 1993 and includes the regulations to it. Superannuation Entity means any entity which provides superannuation or similar benefits and which the trustee of a Regulated Superannuation Fund may, in accordance with the Superannuation Law, transfer or rollover a member s accrued benefit to, or accept a transfer or rollover of benefits from. A Superannuation Entity includes an Eligible Rollover Fund. Superannuation Law means any requirement of a law or a Superannuation Regulator: prescribed for the operation of Regulated Superannuation Funds; or which must be complied with in order to: obtain the maximum tax concessions available to Regulated Superannuation Funds; or avoid any penalty. Superannuation Regulator means the governmental body or bodies having responsibility for the regulation of, or the administration of tax concessions available to, Regulated Superannuation Funds, including: the Australian Prudential Regulation Authority; the Australian Securities & Investments Commission; and the Australian Taxation Office. Tax means all forms of taxes, duties, governmental imposts and surcharges together with interest, penalties, charges, fees and other amounts payable on or in respect of them. Total and Permanent Disablement, in relation to an Insured Benefit of a Member has the meaning given to the term total and permanent disablement or a corresponding term in the applicable Policy of Insurance.

13 7 Total Disability, in relation to an Insured Benefit of a Member, has the meaning given to the term total disability or a corresponding term in the applicable Policy of Insurance. Trustee means the Trustee for the time being of the Fund. 1.2 Definitions from SIS In this Deed unless the context otherwise requires, the following expressions have the meanings given to them in SIS: Activity Fee ; Administration Fee ; Approved Trustee ; Associate ; Buy-Sell Spread ; Child ; Compassionate Ground ; Constitutional Corporation ; Eligible Rollover Fund ; Exit Fee ; Insurance Fee ; Interdependency Relationship ; Investment Fee ; Large Employer ; Legal Personal Representative ; MySuper Product ; Permanent Incapacity ; Registrable Superannuation Entity ; Regulated Superannuation Fund ; Severe Financial Hardship ; Spouse ; Switching Fee ;

14 8 Terminal Medical Condition. 1.3 Statutes References in this Deed to any statutory enactment include, and shall be construed as, references to the enactment as amended, modified, consolidated, replaced or re-enacted from time to time. 1.4 Plurals and Genders Words importing the singular number include the plural and vice versa and words importing any gender include all genders. 1.5 Clauses, Schedules and Rules Any reference in this Deed to a Clause, Schedule or Rule is a reference to the corresponding Clause, Schedule or Rule of this Deed. 1.6 Headings and Sub-Headings The use of headings in this Deed is for convenience only, and headings do not form part of, and are not to be used in the interpretation of, any provision of this Deed. 1.7 Bodies and Associations References to authorities, institutes, associations and bodies whether statutory or otherwise, in the event of any such authority, institute, association or body ceasing to exist or being reconstituted, renamed or replaced or its powers or functions being transferred to any other authority, institute, association or body, is deemed to refer respectively to the authority, institute, association or body established or constituted to replace it or succeeding to its powers or functions or any of them. 2 CONSTITUTION OF TRUST 2.1 Trust The Trustee declares that it holds the Fund upon the trusts, terms and conditions of this Deed. 2.2 Commencement The date of the Fund s commencement is 1 October Name of Fund The superannuation trust fund constituted under this Deed is known as Sunsuper Superannuation Fund. 1 1 Name of Fund changed to Sunsuper Superannuation Fund on 20 April Previous name (since commencement) was Sunsuper.

15 9 2.4 Fund The trust fund of the Fund includes: the initial investment settled on commencement of the Fund; such contributions as may be made from time to time by Participating Employers, Members and other persons; all assets, property, benefits or policies in which the Fund is from time to time invested; and all earnings from time to time arising from contributions or investments. 2.5 Interest in the Fund Each Member has a beneficial interest in the Fund, but that interest does not: entitle the Member other than as provided in this Deed or permitted by law: (iii) to interfere with the rights or powers of the Trustee in its dealings with the Fund; to exercise any rights, powers or privileges in respect of any Authorised Investments; or to require the transfer to the Member of any of the assets of the Fund; confer any interest in any particular part of the Fund. 2.6 Participating Employers and Members bound by Deed The terms and conditions of this Deed are binding on the Trustee, each Participating Employer and each Member and all persons claiming through them respectively as if each such Participating Employer and Member had severally been a party to this Deed. 2.7 Purpose The Fund must be maintained solely for one or more of the core or ancillary purposes identified in SIS as the purposes for which a Regulated Superannuation Fund must be solely maintained. 2.8 Compliance The Trustee may comply with any Superannuation Law notwithstanding that: compliance with the Superannuation Law conflicts with an express provision of this Deed; the Superannuation Law is not required under SIS or otherwise to be included in this Deed. The Trustee is not taken to have committed any breach of trust by virtue of any act or thing done to comply with any Superannuation Law.

16 10 Notwithstanding any other provision in this Deed: the Trustee in the exercise of its powers under this Deed is not subject to the direction of any other person except where the Superannuation Law permits the direction to be given to the Trustee by that person, and where any provision of the Deed would permit any person to give a direction to the Trustee other than as permitted by the Superannuation Law the Trustee must disregard any direction given by that person, and the Trustee may alone exercise the power, authority or discretion which is by the terms of this Deed subject to the direction of that other person; where any discretion under this Deed may be exercised by a person other than the Trustee: (A) (B) (C) the person on whom the discretion is conferred may not exercise that discretion in any case unless the Trustee consents to the exercise of the discretion in the manner in which the person proposes to exercise the discretion; the provision conferring the discretion is deemed to require the consent of the Trustee to the exercise of the discretion; and the person on whom the discretion is conferred may exercise the discretion with the Trustee s consent. (e) Without limiting the preceding provisions of this clause 2.8, the provisions of Part 6 of SIS override any provision of this Deed which is inconsistent with them. This Deed is to be construed as containing covenants in the terms prescribed under SIS as covenants that are taken to be contained in the governing rules of a Registrable Superannuation Entity. 3 PARTICIPATING EMPLOYERS 3.1 Application for Participation as a Participating Employer An Employer who wishes to provide retirement and other approved ancillary benefits for its Employees may apply to become a Participating Employer in a form acceptable to the Trustee. 3.2 Trustee may reject application for Participation The Trustee may: accept or reject an application to become a Participating Employer without giving any reason; impose any conditions when accepting an application; and at any time, remove or vary any condition so imposed.

17 Participation without application If Superannuation Law permits, the Trustee may accept an Employer as a Participating Employer without having received an application for participation, on such terms and conditions and effective from such date as the Trustee determines. 3.4 Date of Admission An applicant becomes a Participating Employer on the date determined by the Trustee. 3.5 Information to be given to Employers or prospective Employers The Trustee must give a new or prospective Participating Employer such information as is prescribed by the Superannuation Law. 3.6 Terms of Participation (e) (f) (g) The Trustee may agree ( Participation Agreement ) that a Participating Employer s participation in the Fund is to be governed, wholly or partly, by rules other than the terms of this Deed, in respect of Employees of the Participating Employer and if applicable former Employees and other persons that the participation relates to. Without limiting clause 3.3, where the benefits of Employees of a Participating Employer are transferred to the Fund from another Superannuation Entity, the Trustee may determine to accept a document specifying terms and conditions of membership of those Employees (and if applicable former Employees and other persons that the participation relates to) in that Superannuation Entity as comprising a Participation Agreement for that Participating Employer. A Participation Agreement overrides inconsistent provisions of this Deed to the extent of the inconsistency. The same Participation Agreement may apply in respect of Employees of two or more Participating Employers, and may identify one Principal Employer, that has special rights and obligations, and one or more Associated Employers. The Trustee may amend the Participation Agreement from time to time in accordance with the terms of the Participation Agreement or, where the Participation Agreement does not specify amendment terms, clause 19. To avoid doubt, a Participation Agreement operates as an amendment to this Deed in respect of the beneficiaries the Participation Agreement applies to, and does not constitute a separate trust. The Trustee may regard any instruction given or purported to be given by an officer of a Participating Employer as a valid instruction. 3.7 Termination of Participation A Participating Employer may at any time by notice in writing to the Trustee terminate its participation in the Fund as from a date specified in the notice and accepted by the Trustee.

18 12 The Trustee may by notice in writing given to a Participating Employer terminate the Participating Employer s participation in the Fund on a date determined by the Trustee and specified in the notice. 3.8 Substituted Employer Where: the whole or substantially the whole of the assets of a Participating Employer s business are acquired by another person; or another person commences to employ all or any Members formerly employed by a Participating Employer, the Trustee may elect to accept the performance by that other person of the obligations of the Participating Employer under this Deed in place of the performance of those obligations by the Participating Employer. Acceptance by the Trustee of performance of a Participating Employer s obligations by another person discharges the Participating Employer from any further obligations under this Deed. 3.9 Consequences of termination On termination of a Participating Employer s participation taking effect: no persons shall be admitted as Members as Employees of the former Participating Employer; the former Participating Employer must not make further contributions to the Fund except contributions due prior to the date of termination Rights of Employer maintained Neither membership of the Fund nor anything contained in this Deed in any way prejudices or affects the right of a Participating Employer to dismiss any Employee or to vary the terms of an Employee s employment, and neither membership of the Fund nor the rights or benefits of a Member under this Deed may be used as grounds for granting or increasing damages in any action brought by any Employee against the Participating Employer whether in respect of any alleged wrongful dismissal or otherwise. 4 MEMBERS 4.1 Eligibility Any Eligible Person is eligible to become a Member, subject to this clause Application for membership An Employee nominated for membership of the Fund by a Participating Employer may apply to become a Member. A Participating Employer may apply for an Employee to become a Member.

19 13 Any Eligible Person other than an Employee of a Participating Employer may apply to become a Member. An application for membership must be in a form acceptable to the Trustee. 4.3 Admission with no application If Superannuation Law permits, the Trustee may admit an Eligible Person as a Member without having received an application for membership, on such terms and conditions and effective from such date as the Trustee determines. 4.4 Applicant to provide information An applicant who wishes to become a Member must: have any medical examination; and provide any information or take any other steps, which the Trustee requests in relation to the application. 4.5 Admission to membership The Trustee may: (iii) accept or reject an application to become a Member without giving any reason; impose any conditions when accepting an application; and at any time remove or vary any condition so imposed. The Trustee must reject an application unless the applicant is an Eligible Person and the Trustee is satisfied that the applicant is an Eligible Person. 4.6 Date of admission Where an Eligible Person is admitted as a Member, their membership commences on the date determined by the Trustee or, if the Trustee makes no determination, on the earlier of: the date the Trustee accepts the application for membership in respect of the Eligible Person; the date the Trustee accepts the first contribution or rollover for the credit of the Member. 4.7 Provisional Members An Employee: whose Participating Employer has applied on the Employee s behalf; and who has not lodged an application,

20 14 becomes a Provisional Member upon acceptance by the Trustee of the Participating Employer s application for the Employee s membership, unless the Trustee accepts the Employee as a Member. A Provisional Member may apply for membership. A Provisional Member becomes a Member on the Trustee accepting them as a Member, and their membership commences on a date determined by the Trustee. 4.8 Information to be given to Members or prospective Members The Trustee must: provide to prospective Members, prior to accepting an application for membership, such information as is prescribed by Superannuation Law; provide such information to a new Member as is prescribed by Superannuation Law. 4.9 Subsequent failure to provide Information If a Member fails after admission to provide information or evidence as and when required by the Trustee and to its satisfaction, the Trustee may refuse to accept any further contributions by or for that Member Termination of Membership/Provisional Membership A person ceases to be a Member on the first to occur of: the Member s benefit being paid in full; or transfer of the full amount of the Member s Retirement Credit or Accrued Benefit to another Superannuation Entity. A person ceases to be a Provisional Member on the first to occur of: (iii) the Provisional Member s benefit being paid in full; the Provisional Member becoming a Member; or transfer of the full amount of the Provisional Member s Retirement Credit to another Superannuation Entity Cooling Off Period The Trustee must comply with any requirements of Superannuation Law in relation to notification and operation of cooling off periods. 5 ACCOUNTS OF THE FUND 5.1 Establishment of Reserve Account The Trustee must maintain a Reserve Account for the Fund.

21 Crediting of Reserve Account The Trustee must credit to the Reserve Account: all income earned on the Fund s investments; any gains on the realisation of any of the Fund s investments, and any other accretions to or arising out of the Fund s investments; any amounts debited to provide for payment of Expenses; any other amounts which may be credited to the Reserve Account under this Deed or in accordance with Superannuation Law. 5.3 Debiting of Reserve Account The Trustee must debit to the Reserve Account: any losses on realisation of any of the Fund s investments; any amounts applied by the Trustee in accordance with clause Application of Reserve Account Credit The Trustee may apply the Reserve Account for any of the following purposes: in payment of Expenses; to provide additional benefits for Members or their Dependants in such manner as the Trustee determines; in determining the amount of a net change in value of the assets of the Fund or an investment strategy which is available for allocation to Member Accounts; for any other purpose permitted by Superannuation Law. 5.5 Establishment of Retirement Credit The Trustee must maintain for each Member (other than a Member entitled only to Defined Benefits) an account referred to as the Retirement Credit. 5.6 Allocations to Retirement Credit The Trustee must allocate to a Member s Retirement Credit: (iii) any contributions made by or for the credit of the Member; any amount transferred from another Superannuation Entity for the credit of the Member; any part of a contribution made for the credit of another Member which that other Member has requested or directed is to be allocated to the Member Account, where:

22 16 (A) (B) Superannuation Law permits the allocation and the Trustee determines to make the allocation; or Superannuation Law requires the allocation; (iv) any amount otherwise received by the Trustee for the credit of the Member or which under this Deed the Trustee may allocate for the benefit of the Member (including the proceeds of any Policy of Insurance received in respect of the Member). The Trustee must also allocate to each Member Account: (iii) (iv) (v) net changes in value of the assets of the Fund, or of an investment strategy or investment strategies, as applicable to the Member; any amount transferred to another Superannuation Entity for the credit of the Member; any charges applicable to that Member; any share of Expenses the Trustee determines to allocate to the Member, and any particular Expenses applicable to that Member; any other debits or credits applicable to the Member or which the Trustee decides to allocates to the Member. Despite clause 5.6, the Trustee must not allocate to a Member s Retirement Credit an amount for charges or Expenses in respect of a MySuper Interest, where Superannuation Law does not permit those charges or Expenses to be charged in respect of a MySuper Product. 5.7 Other Accounts The Trustee may maintain any other accounts as the Trustee considers appropriate. 5.8 Change in value of the Fund The Trustee must determine the net change in the value of the assets of the Fund from time to time, to be declared at such times and in respect of such periods as the Trustee nominates. In determining the net change in value of the assets of the Fund for a period, the Trustee may take into account, in relation to the period: (iii) (iv) investment returns on the assets of the Fund; expenses, and any provision for expenses, in connection with the Fund; capital gains and losses on realisation of any of the assets of the Fund; unrealised gains and losses arising on revaluation of any of the assets of the Fund;

23 17 (v) (vi) (vii) (viii) (ix) allowance for capital appreciation and depreciation on any of the assets of the Fund; write-offs of bad debts; the appropriateness of averaging the net earnings of the Fund over two or more periods; any reserves maintained by the Trustee; and any other factors which the Trustee considers appropriate. (e) (f) The net change in value of the assets of the Fund for a period may be positive or negative. Where the Trustee maintains two or more investment strategies during a period, the Trustee must determine the net change in value of the assets of the Fund for that period which is attributable to each investment strategy, instead of determining the change in value of the assets of the Fund for that period. The Trustee must on determining a net change in value of the assets of the Fund or any investment strategy, determine the extent to which, and the manner in which, that net change in value is to be allocated to Member Accounts. The Trustee may adopt procedures for determining a net change in value of the assets of the Fund or an investment strategy on an interim basis at such times as the Trustee determines. 5.9 Unallocated Accounts for Defined Benefits The Trustee may enter into an agreement with a Participating Employer that some or all of the benefits for some or all Employees of the Participating Employer who become Members are Defined Benefits ( Defined Benefit Agreement ). A Defined Benefit Agreement forms part of the governing rules of the Fund applicable to Members whose benefits are provided under the terms of the Defined Benefit Agreement. Where a Defined Benefit Agreement is in place, the Trustee must maintain an unallocated account for that Participating Employer ( Unallocated Account ). The Trustee must allocate to each Unallocated Account net changes in the value of the assets of the Fund, or of an investment strategy or investment strategies, as applicable to that Unallocated Account. The Trustee must credit to an Unallocated Account: (iii) contributions made by the Participating Employer for the purpose of providing Defined Benefits for Employees of that Participating Employer; any contributions made by Employees of that Participating Employer required for the provision of their Defined Benefits; [deleted];

24 18 (iv) (v) any proceeds payable under a Policy of Insurance taken out to provide Defined Benefits on death or Total and Permanent Disablement for Employees of that Participating Employer; any other amount held pursuant to this Deed in relation to the provision of Defined Benefits for Employees of that Participating Employer. The Trustee must debit to a Unallocated Account: the amount of any Defined Benefit: (A) (B) paid in respect of an Employee of that Participating Employer; or for any reason converted to an accumulation benefit and allocated to a Retirement Credit for an Employee of that Participating Employer; (iii) (iv) (v) (vi) the amount of any Defined Benefit paid to another Superannuation Entity in respect of an Employee of that Participating Employer; any insurance premiums payable under a Policy of Insurance taken out to provide Defined Benefits on death or Total and Permanent Disablement for Employees of that Participating Employer; a share of any Expenses which the Trustee decides to debit to the Unallocated Account; any Expense the Trustee determines is properly attributable to that Unallocated Account; and any other debits applicable to the Unallocated Account or the provision of Defined Benefits for Employees of that Participating Employer, or which the Trustee decides to allocate to the Unallocated Account. (e) The amount of a Defined Benefit payable in respect of a Member: must not have the effect that the balance in the Unallocated Account after payment of the benefit will be less than the aggregate vested Defined Benefits of the other Members entitled to Defined Benefits out of that Unallocated Account; and cannot be paid out of any assets of the Fund other than the Unallocated Account out of which the Defined Benefit is payable. (f) A Participating Employer which enters into a Defined Benefit Agreement must make such contributions as are necessary to fund the Defined Benefits provided for in the Defined Benefit Agreement, but subject to any provisions of the Defined Benefit Agreement allowing for: suspension or termination of contributions;

25 19 decrease in the future accrual of Defined Benefits payable from the Unallocated Account. (g) Where the Trustee determines that there is a surplus in an Unallocated Account, the Trustee may, if the Participating Employer requests: (iii) pay an amount out of the surplus to the Participating Employer, or an associated entity nominated by the Participating Employer, where the Defined Benefit Agreement authorises the payment; increase the amount of Defined Benefits payable from the Unallocated Account; otherwise apply the surplus in a manner permitted by Superannuation Law. (h) Where the Trustee determines that there is a deficiency in an Unallocated Account, the Trustee may take such steps as the Trustee is authorised or required to take under Superannuation Law in relation to the deficiency (which may include reducing the accrued Defined Benefits of Employees of the Participating Employer). However the Trustee cannot make good any deficiency in an Unallocated Account by making any payment out of any assets of the Fund other than that Unallocated Account. Where the Trustee has formulated more than one investment strategy for the Fund, the Trustee must determine the investment strategy or combination of investment strategies for investment of an Unallocated Account. The Trustee may consider, but is not bound by, any recommendation of the Participating Employer as to the investment strategy for that Participating Employer s Unallocated Account Reserves for parts of the Fund The Trustee may: separately maintain and account for a reserve in respect of any part of the Fund; and allocate to the reserve any amounts the Trustee determines in respect of that part of the Fund. The Trustee may apply a reserve in respect of a part of the Fund: (iii) in payment of Expenses attributable to that part of the Fund; to provide additional benefits for Members or their Dependants relevant to that part of the Fund; for any other purpose permitted by Superannuation Law, in respect of that part of the Fund.

26 20 6 MANAGEMENT OF TRUST 6.1 Powers of Trustee The Trustee has all the powers over and in respect of the property and assets constituting the Fund which it could exercise if it were the absolute and beneficial owner. Without in any way limiting the generality of the foregoing or of any other provision of this Deed which gives powers to the Trustee, the Trustee has full and absolute powers of: (e) (f) (g) (h) (j) (k) (l) (m) purchase and sale for cash or upon terms any Authorised Investment and investment of the proceeds of any sale of Authorised Investments; leasing and accepting surrenders of leases (or agreeing so to do) with power to compromise with lessees and others; executing and paying for repairs and improvements; instituting, prosecuting, compromising and defending legal proceedings and to secure compliance with the terms of this Deed or to recover any loss suffered by Members in respect of their investment under this Deed; attending and voting at meetings; paying all outgoings reasonably and properly incurred in connection with the Fund or this Deed, including any Administrator s or Investment Manager s fees or remuneration; opening and operating accounts with financial institutions; subject to clauses 8.9 and 8.10, lending money; developing, improving, subdividing, building, rebuilding, altering, extending, replacing, repairing, managing, operating, leasing and otherwise dealing with any Authorised Investment and purchasing such plant, equipment and fittings as are necessary having regard to the purposes for which an Authorised Investment is from time to time being used or intended to be used; entering into, performing and enforcing agreements; drawing, endorsing, discounting, selling, purchasing and otherwise dealing with bills of exchange either alone or jointly and in particular commercial bills but so that the totality of the moneys for the time being the subject of liability on the part of the Trustee whether as drawer, acceptor or endorser of any and all of such bills of exchange and whether alone or jointly or severally with other persons are liabilities of the Fund; entering into agreements with joint or co-owners of assets an interest in which constitutes an Authorised Investment for the time being held by the Fund for such purposes as the Trustee may consider conducive to the interests of the Fund; entering into agreements (whether in the nature of partnerships, joint ventures or otherwise) for the development of Authorised Investments with other reputable, financial, solvent and stable persons and corporations;

27 21 (n) (o) (p) (q) (r) (s) (t) (u) (v) (w) (x) (y) setting aside out of the capital and income of the Fund such moneys as may be required to meet the obligations of the Trustee under this Deed; collecting and accepting contributions to the Fund and crediting the contributions to any account with a financial institution; allocating any amounts by way of income, capital or contributions to any Investment Manager; paying or otherwise dealing with benefits in accordance with this Deed; insuring or re-insuring any risks, contingencies or liabilities of the Fund; taking out, or otherwise acquiring or surrendering any Policy of Insurance, and paying premiums; determining as and when the need arises, who are Dependants of a deceased Member; exercising any rights of ownership attaching to any asset of the Fund whether alone or jointly with other persons having rights of ownership, and meeting out of the assets of the Fund any liability attaching to ownership of any asset of the Fund, whether alone or jointly with other persons; varying or transposing any investments into or for any other Authorised Investment and varying the terms of any document or security; maintaining a register of Participating Employers and register of Members; irrevocably electing that the Fund shall become a Regulated Superannuation Fund; and doing such other things as may appear to the Trustee to be incidental to any or all of the above powers. 6.2 Delegation of Trustee powers The Trustee may delegate any functions, authorities, discretions or powers exercisable by the Trustee (including a power which the Trustee has a duty to exercise) to any person upon such terms and conditions as it determines. The Trustee is not liable or responsible for any act or omission, error of judgment, negligence or breach of trust of a delegate. The Trustee may: revoke any delegations; exercise any delegated function, authority, discretion or power itself concurrently with or to the permanent or temporary exclusion of a delegate.

28 Appointment of Administrator, Custodians and Advisers The Trustee may: appoint in writing on such terms as it determines a person ( Administrator ) to administer the Fund; delegate to an Administrator such matters as it determines from time to time related to the administration of the Fund. The Trustee may: appoint in writing on such terms as it determines any person eligible for appointment in accordance with Superannuation Law as a custodian ( Custodian ), to receive, hold and retain registration of any of the assets of the Fund (whether or not those assets are located in Australia). by the terms of appointment of a Custodian, allow the Custodian to appoint and remove agents or sub-custodians to carry out the Custodian s duties or any of those duties. The Trustee may engage accountants, actuaries, bankers, barristers, solicitors, brokers, consultants, valuers and such other professional advisers from time to time, to give such advice, as the Trustee determines. The Trustee is not liable for the neglect, default or misconduct of any person appointed or engaged by it, nor for allowing trust funds or securities to remain in the custody or control of any person so appointed or engaged for any time. 6.4 Remuneration of Delegates and Advisers The Trustee may pay from the Fund, as an Expense, such remuneration as it determines to any delegate appointed by it or adviser engaged by it. 6.5 Exercise of Discretion Any exercise by the Trustee of any power, discretion or authority of the Trustee may be made by a resolution of the corporation or by a resolution of its board of directors or other governing body. 6.6 Trustee not required to give security The Trustee is not required to give bond or security for the due and faithful administration of the Fund or for the discharge of the trusts of this Deed. 6.7 Remuneration of Trustee The Trustee is entitled to pay itself from the Fund from time to time a reasonable remuneration for its services as trustee.